Govt Rebuts Criticism of State Secrets Privilege

10.20.14 | 3 min read | Text by Steven Aftergood

Last week government attorneys submitted 28 documents concerning “watchlisting” procedures to a federal court for in camera review that they said should be protected from disclosure under the state secrets privilege.  The documents had been sought by the plaintiff in Gulet Mohamed v. Eric Holder, a case challenging the constitutionality of the “no fly” list.

The government had previously argued that it was “not appropriate” for a court to perform its own review of such privileged records. But it nevertheless complied with a court order to produce them (under seal).

The government reiterated its position that “the assertion of the state secrets privilege in this case is proper, and the appropriate consequence of the assertion of the privilege is dismissal of Plaintiff’s case.”

Beyond that, government attorneys also took the opportunity to rebut the court’s criticism of the use of the state secrets privilege, and to defend several past assertions of the privilege.

In a September 15 court order, Judge Anthony J. Trenga, who is hearing the Gulet Mohamed case, had commented (in a footnote at p.5) that “The government’s assertion of the state secrets privilege in certain cases has been less than reassuring.” He mentioned several problematic instances beginning with Reynolds v. US, the 1953 Supreme Court case that recognized the state secrets privilege based on claims that were later called unfounded or even fraudulent.

The government pushed back against those comments and defended each of the controversial assertions of the state secrets privilege cited by Judge Trenga.

“The suggestion that the privilege assertion in Reynolds lacked a proper basis is mistaken,” the government insisted, noting that courts had rejected persistent allegations of government fraud in that case.

Among the documents that the government submitted to the court on Friday is the Watchlisting Guidance that defines the procedures and criteria for adding someone to the no-fly list.

In its public filing, the government did not acknowledge that the purportedly privileged Watchlisting document has been publicly disclosed and published online (by The Intercept). But government attorneys had previously argued that any purported leak did not necessarily alter the privileged status of the leaked document. It will now be up to Judge Trenga to determine whether or not that is so.

The documents submitted for review were accompanied by a heavily redacted declaration from Michael Steinbach, Assistant Director of the FBI Counterterrorism Division.

In another pending state secrets case, Restis v. United Against Nuclear Iran, several civil liberties groups asked for leave to submit an amicus curiae brief concerning the proper use of the state secrets privilege. Somewhat mysteriously, the government intervened to assert the state secrets privilege in that case, though it was not a party to it. Nor would it reveal which executive branch agency is actually asserting the privilege — which may be a roundabout way of saying, “It’s the CIA.”

“The proposed [amicus] brief will address the scope and nature of the state secrets privilege, the procedures that must accompany any proper assertion of the privilege, and the public interest at stake when the Government seeks to invoke the privilege,” wrote Dror Ladin on behalf of the ACLU, the Brennan Center for Justice, the Center for Constitutional Rights, the Constitution Project, the Electronic Frontier Foundation, and the Sunlight Foundation.

Without objection from any of the parties, the civil liberties groups were granted permission to submit their brief by October 29.